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Haaland v. Brackeen, Indigenous Sovereignty, and the Ethics of Care

By Dana Lloyd

On June 15, 2023, the U.S. Supreme Court handed down a decision in Haaland v. Brackeen.[1] In this case, non-Indigenous foster and adoptive parents argued that the 1978 Indian Child Welfare Act (ICWA), which gives preference to Indigenous parents in fostering and adopting Indigenous children, is unconstitutional. They said the law discriminated against them on the basis of race. In a 7–2 ruling, the court rejected all of the petitioners’ challenges to ICWA, some on the merits of the case and others for lack of standing. The Brackeens’ attack on ICWA conflates indigeneity as racialized with indigeneity as political status, a conflation that began with the first cases of federal Indian law two hundred years earlier. And while the court withheld the constitutionality of ICWA in Brackeen, its understanding of Indigenous sovereignty leaves room for a racialized conception of indigeneity.

In this essay, I read the Brackeen case against the background of two hundred years of federal Indian law and assimilation policy and propose two notions of care as a framework for thinking about the case: the first, associated with U.S. assimilation policy, sees care as charitable, but it is actually coercive and harmful; the second is based on solidarity and is at the heart of Indigenous sovereignty.

In his concurring opinion in Brackeen, Justice Neil Gorsuch provided the background he saw necessary to understanding ICWA. As he explained, ICWA did not emerge from a vacuum but was enacted in response to the assimilation era’s attacks on the Indigenous home and family, including boarding schools for Indigenous children and practices of out-adoption. “In all its many forms,” Gorsuch wrote, “the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of Tribes—something many federal and state officials over the years saw as a feature, not as a flaw.”[2]

A native-led rally in Portland, Oregon in January 2017. Photo by Ian Sane via Flickr.

Between 1819 and 1969, the United States operated or supported 408 boarding schools across 37 states or territories. They were designed by military officer Richard Henry Pratt to “kill the Indian . . . and save the man” and are now widely considered a tool of ethnocide (cultural genocide), if not genocide. But even when the boarding school era ended, out-adoption and foster care were ubiquitous practices as part of the “Indian adoption project” of the 1950s and 1960s. Survivors recount social workers entering Native homes and taking the children, claiming the children would be better off raised by white families. In white adoptive homes, Native children were often abused, and their Indigenous identity was attacked, ridiculed, and weaponized against them.[3] Decades of Native American activism led to ICWA.[4] In cases where Indigenous children enter the foster care system, ICWA prioritizes placing these children first with relatives, then with tribal members, and then with other Native families. Only if none of these are available to foster are non-Native foster parents considered.

Assimilation methods used in Native American boarding schools included changing children’s names from Indigenous to English names, cutting their hair, punishing them for speaking their Indigenous languages or practicing their religious ceremonies, and forcing them to perform military-style drills. Children had to participate in manual labor, including “livestock and poultry raising; dairying; western agriculture production; fertilizing; lumbering; brick-making; cooking; garment-making; irrigation system development; and working on the railroad system.”[5] Corporal punishment, solitary confinement, flogging, whipping, withholding food, slapping, and cuffing were often used to enforce school rules. Often, older children were made to punish the younger ones. All of it was presented as carried out in the name of care—the schools’ purpose was to “kill the Indian to save the man”—but, as Métis scholar Max Liboiron reminds us, care is not inherently good: “Missionary care was often well intentioned, part of the ‘save the man, kill the Indian’ Christian and settler state logics of colonial paternalism and annihilation. They certainly made (violently) affective relations that made (blistering) attachments in infrastructures of (colonial, genocidal) inequity, that the school understood as their (Christian) obligation. From the position of conquest (of people, Land, and souls), genocidal care is an obligation.”[6]

Moreover, as scholars have argued, and as a 2022 Bureau of Indian Affairs (BIA) report affirms, cultural assimilation policies also supported land theft: “Beginning with President Washington, the stated policy of the Federal Government was to replace the Indian’s culture with our own. This was considered ‘advisable’ as the cheapest and safest way of subduing the Indians, of providing a safe habitat for the country’s white inhabitants, of helping the whites acquire desirable land, and of changing the Indian’s economy so that he would be content with less land. Education was a weapon by which these goals were to be accomplished.”[7]

The 2022 BIA report concluded that “to begin the process of healing from the harm and violence caused by assimilation policy, the Department should affirm an express policy of cultural revitalization—supporting the work of Indian Tribes, Alaska Native Villages, and the Native Hawaiian Community to revitalize their languages, cultural practices, and traditional food systems, and to protect and strengthen intra-Tribal relations.”[8] In other words, in order to heal from the genocidal care of the state and the church, it is Indigenous, caring sovereignty that needs to be promoted. Is the Brackeen decision in line with this conclusion?

In Brackeen, three states—Texas, Louisiana, and Indiana—and seven people sued the federal government to challenge ICWA. They made two basic arguments: that Congress lacked the power to enact it and that it violated equal protection principles by drawing distinctions based on race. As noted above, ICWA ordered that, “in the absence of good cause to the contrary,” state judges should take into account a series of preferences when hearing custody cases involving Indigenous children who live off tribal lands and are tribal members or eligible for membership. The petitioners, “a birth mother, foster and adoptive parents, and the State of Texas,” all “challenge[d] the Act on multiple constitutional grounds. They argue[d] that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race.”[9]

The Brackeens argued not only that they, as foster parents, were discriminated against on the basis of race, but that Indigenous children themselves are discriminated against on the basis of race, because in cases involving other children, the child’s best interest guides courts in deciding custody cases, while in the case of Indigenous children, it is the tribe’s best interest that ICWA forces courts to consider first. Supporters of ICWA contend the Indigenous child’s best interest includes protecting the child’s relationship with their tribal nation. I argue, moreover, that suggesting that Indigenous children’s and Indigenous nations’ best interests are not one and the same adheres to the same assimilationist ideology that guided federal Indian policy for centuries. And this ideology employs a rhetoric of charitable care—care that is coercive, harmful, genocidal. As historian Laura Briggs argues, the political right’s preferred way to attack Indigenous sovereignty has been ICWA litigation, “playing on the desire to rescue children—an intrinsically more appealing gesture than trying to, say, take reservation lands or gaming revenue.”[10] And as Anishinaabe author Patti Krawec writes, settler colonial relationships are built on a paternalistic foundation: “charity and good work, helping the less fortunate.”[11] Indigenous relationality or kinship is built on a different foundation. Being a good relative means something else altogether: they are reciprocal.

These arguments become less abstract when the Brackeens’ story is considered. Chad and Jennifer Brackeen, a white Christian Evangelical couple, fostered a ten-month-old Navajo/Cherokee boy, whom they called Zachary (in the legal documents: “ALM”). Informed that they would not be able to adopt him because of ICWA (they were to give the child a temporary home until a Native family could be found), the Brackeens fought to adopt him even when his tribal nation claimed him. When they heard that the boy’s mother had another child, they fought to adopt her, too, in order for the siblings to grow up together. Their argument was imbued with Christian language and their providential role in the child’s life. They argued that Native children flourish in non-Native homes—a position similar to the one that justified the boarding school system. In the twenty-first century, the question of flourishing was used by the Brackeens to argue that ICWA is unconstitutional because it discriminates against white adoptive parents. The other consolidated cases involved Nick and Heather Libretti, who adopted Baby O. (Ysleta del Sur Pueblo), and Jason and Danielle Clifford, who fostered Child P. (White Earth Band of Ojibwe). All three couples were described in the Brackeen decision as “intend[ing] to foster or adopt Indian children in the future,”[12] suggesting that white Christian desire to adopt Native children (similar to the Indian Adoption Project) remains.

While some challenges presented against ICWA’s constitutionality were rejected on their merits, the racial discrimination argument was rejected for lack of standing.[13] As Justice Brett Kavanaugh’s concurring opinion suggests, courts “will be able to address the equal protection issue when it is properly raised by a plaintiff with standing—for example, by a prospective foster or adoptive parent or child in a case arising out of a state-court foster care or adoption proceeding.”[14] ICWA, therefore, has not been affirmed. According to Adam Liptak, reporting for the New York Times, “There [is] a fair prospect that the court [will] strike down at least part of the law.”[15] What understanding of Indigenous sovereignty makes possible this conflation of indigeneity and race? And what ideas of care can help us to disentangle them?

Justice Gorsuch explains that the legal questions raised in Brackeen are questions about Indigenous sovereignty: “What authorities do the Tribes possess under our Constitution? What power does Congress have with respect to tribal relations? What does that mean for States? And how do those principles apply in a context like adoption, which involves competing claims of federal, state, and tribal authority?”[16]

From the perspective of federal Indian law, or with a western framework of sovereignty in mind, plaintiffs’ attack on ICWA can be understood as an assault on Indigenous sovereignty because it asks to limit Indigenous peoples’ authority to decide where and how their children live. Sovereignty in this framework means the right to rule, to decide the fate of a place and of a people. Indigenous frameworks understand sovereignty differently, but with an Indigenous framework of sovereignty in mind, the Brackeens’ attack on ICWA is seen as an even more severe attack on sovereignty. As artist and scholar Leanne Betasamosake Simpson (Michi Saagiig Nishnaabeg) wrote, “Children learn sovereignty at home in the context of family, and they carry themselves in a sovereign way into the community, the nation, and ultimately in relations with other nations. Children also teach us about sovereignty and the importance of having agency over one’s own life.”[17] Sovereignty, according to her, is not the right to decide the fate of a place and its people, but the ability to live according to obligations to family members, including children and land.

Care is, therefore, at the heart of Indigenous sovereignty. To live as sovereign, Indigenous nations must be able to care for their children and their land. Hi‘ilei Julia Kawehipuaakahaopulani Hobart (Kanaka Maoli) and Tamara Kneese write that “Indigenous peoples and their allies have rearticulated their positions as protectors rather than protesters, emphasizing the importance of caring for and being good stewards of the earth.”[18] When ICWA protects Indigenous children’s right to remain with their families and tribal nations, it also protects their right to remain with their land—to care for and be cared by her. It is thus responsive to the twin policies of assimilation and land theft.

To think about the relationship of the Brackeens with their Cherokee/Navajo adopted children outside the context of the history of assimilation policy and the structure of settler colonialism is to consider indigeneity in terms of race rather than sovereignty, as federal Indian law has done throughout history. Justice Amy Coney Barrett’s majority opinion in Brackeen rejected the argument about racial discrimination for lack of standing, and Justice Kavanaugh’s concurring opinion may be seen as encouraging future challenges to ICWA. Is Justice Gorsuch’s history lesson in his concurring opinion enough to fulfill his hope “that, in time, [the Supreme Court] will follow the implications of [the Brackeen] decision where they lead and return us to the original bargain struck in the Constitution—and, with it, the respect for Indian sovereignty it entails”?[19]


Notes

[1] 599 U.S. 255 (2023).

[2] Brackeen, 2 (Gorsuch, J., concurring).

[3] For a powerful personal account, see Sandy White Hawk, A Child of the Indian Race: A Story of Return (Saint Paul: Minnesota Historical Society Press, 2022).

[4] Laura Briggs tells the story of this activism, which I want to propose is a form of care in itself, in her book Taking Children: A History of American Terror (University of California Press, 2020).

[5] Bryan Newland, “Federal Indian Boarding School Initiative Investigative Report” (May 2022), available at https://www.bia.gov/sites/default/files/dup/inline-files/bsi_investigative_report_may_2022_508.pdf (hereinafter: “BIA Report”), 8.

[6] Max Liboiron, Pollution is Colonialism (Durham, NC: Duke University Press, 2021), 114.

[7] Indian Education: A National Tragedy—A National Challenge, 1969 Report of the Committee on Labor and Public Welfare, United States Senate, Made by Its Special Subcommittee on Indian Education (Washington, DC: U.S. Government Printing Office, 1969), 143, cited in BIA Report, 21. See also Brenda J. Child, “U.S. Boarding Schools for Indians Had a Hidden Agenda: Stealing Land,” Washington Post, August 27, 2021, https://www.washingtonpost.com/outlook/2021/08/27/indian-boarding-schools-united-states/#; Nick Estes, “My Relatives went to a Catholic School for Native Children. It Was a Place of Horrors,” Guardian, June 30, 2021, https://www.theguardian.com/commentisfree/2021/jun/30/my-relatives-went-to-acatholic-school-for-native-children-it-was-a-place-of-horrors.

[8] BIA Report, 95.

[9] Brackeen, 2.

[10] Laura Briggs, “Haaland v. Brackeen and Mancari: On History, Taking Children, and the Right-Wing Assault on Indigenous Sovereignty,” Connecticut Law Review 56, number 4 (2024): 1121–1143, 1129.

[11] Patti Krawec, Becoming Kin: An Indigenous Call to Unforgetting the Past and Reimagining Our Future (Broadleaf Books, 2022), 18.

[12] Brackeen, 8.

[13] A lack of standing means that the petitioner does not have a right to bring a case to court because they have not been harmed. In the Brackeen case, the Brackeens (as well as the other couples involved) have already successfully adopted Indigenous children and therefore have not been harmed by ICWA themselves. 

[14] Brackeen, 2 (Kavanaugh, J., concurring).

[15] Adam Liptak, “Supreme Court Closely Divided in Case on Native American Adoption,” New York Times, November 9, 2022, https://www.nytimes.com/2022/11/09/us/politics/supreme-court-native-american-adoptions.html.

[16] Brackeen, 12 (Gorsuch, J., concurring).

[17] Leanne Betasamosake Simpson, “The Place Where We All Live and Work Together: A Gendered Analysis of ‘Sovereignty,’” in Native Studies Keywords, ed. by Stephanie Nohelani Teves, Andrea Smith, and Michelle Raheja (Tucson: University of Arizona Press, 2015), 21.

[18] Hi‘ilei Julia Kawehipuaakahaopulani Hobart and Tamara Kneese, “Radical Care: Survival Strategies for Uncertain Times,” 1.

[19] Brackeen, 36 (Gorsuch, J., concurring).


About the Author

Dana Lloyd is assistant professor of Global Interdisciplinary Studies at Villanova University. She is the author of Land Is Kin: Sovereignty, Religious Freedom, and Indigenous Sacred Sites (University Press of Kansas, 2023).


Citation: Dana Lloyd, Haaland v. Brackeen, Indigenous Sovereignty, and the Ethics of Care, in: TRAFO – Blog for Transregional Research, 03.07.2025, https://trafo.hypotheses.org/59834


OpenEdition suggests that you cite this post as follows:
Forum Transregionale Studien (July 3, 2025). Haaland v. Brackeen, Indigenous Sovereignty, and the Ethics of Care. TRAFO – Blog for Transregional Research. Retrieved July 8, 2025 from https://doi.org/10.58079/149gk


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